Hansard

Somehow, I do not think that the debate will be oversubscribed, Presiding Officer.

Before I address the detail of the Justice 1 Committee's report, I should say that I appreciate that a paper on legal aid—whether civil or criminal—is not the sexiest or most riveting topic. Michael Matheson challenged me on that point, but I do not wish to take up his challenge. However, it is a riveting topic for people who, for whatever reason, fall on hard times. I advise members that I will come to the problem of the pensioner, the pavement and her purse later in my speech. I hope that members will stay until the end.

As for hard times, they include marriage breakdown—more than 30 per cent of Scottish marriages fall into that category—domestic violence, dismissal from work, criminal charges or a dispute with a builder over the extension to a house. One finds oneself at the citizens advice bureau or scouring the "Yellow Pages" for a solicitor. It is at that point that legal aid leaps to the top of the agenda. It will reach the top of many people's agendas at some point in their lives, given that litigiousness is on the increase.

Once one has got over the hurdle of the "Yellow Pages" and has found a solicitor who will deliver legal aid, one is confronted with form after form. The purpose of the forms is to determine whether one has a case to argue; whether, in civil cases, one has a reasonable chance of proving that case; whether one is financially entitled to legal aid or advice and assistance; and whether it is in the public interest to use public funds for the action.

In the context of that introduction, I quote from the report's terms of reference, which were to make

"an assessment of the impact of recent changes in the legal aid system … and the likely impact of possible and prospective changes, on the contribution made by that system to securing access to justice."

Our report was set against the background of both those aims.

The motion makes it clear that the committee's work on legal aid does not end with the report. Before the committee can produce a final report, it must consider in much greater detail the issues that have been raised at this stage, including the responses that have already been received and those that are in the pipeline.

The responses that the committee has received but has yet to consider include the report of the working group—made up of Citizens Advice Scotland, the Scottish Consumer Council and others—on the establishment of a community legal service for Scotland. We have also yet to consider the research undertaken by the Scottish Legal Aid Board into the reduction in the number of civil legal aid applications between 1992 and 2001. The committee was concerned about that reduction because we were told that the service is, supposedly, demand led. We have also received responses to our report from the Executive and the Law Society of Scotland. The committee has not had an opportunity collectively to consider any of those responses.

We still await the Executive's response to the report on the establishment of a community legal service—I hope that members are still with me on all these reports—and the Executive's comments on the financial impact of our recommendations, to which paragraph 21 of the executive summary of our report refers. We also await the mapping of available legal services, which SLAB is considering, a report on the monitoring of the recent extension from 10 to 20 months of the repayment period for contributions—that report is due to be published in 2003—and responses from anyone else who wishes to respond. It is abundantly apparent that we are in no position to produce anything like a final report. I promise that, one day, the responses to the responses will cease and that we will produce that final report.

Legal aid and its availability are serious issues for our citizens. Legal aid needs more than first aid; it needs radical surgery. It received first aid with the introduction of an extended repayment period for contributions, to which I referred—contrary to popular myth, legal aid is free only for those who are in receipt of income support. I understand that that simple change has helped those in receipt of legal aid and those collecting contributions. The collection rate has reached 94 per cent, which must be in the interests of the public purse and of the contributor.

Some areas require urgent and near-urgent response. We have written to the minister to enumerate them. Our letter is in the post; the minister will find it in his large postbag. Those areas include examining the eligibility criteria. The lower capital limit for legal aid has not been changed since 1983 and there should not be a sudden cut-off when one has to pay a contribution, as that can be unfair. We suggest a tapering of the contribution until it reaches 100 per cent. There is the anomaly between financial eligibility for legal aid and financial eligibility for advice and assistance, which includes the sometimes mysterious interaction between the legal aid system and the benefits system.

Not many people have sympathy for the legal profession, which is seen to lick from the dripping roast of legal aid. I do not flinch from the truth, which is often different from the perception. The fixed fee criminal legal aid rate gives rise to concern for the supply, quality and distribution of legal aid services, particularly in rural courts. The fee rates for solicitors have remained pretty well frozen since 1992—I wish that my plumber's rates had done the same. The committee stressed that increases should be linked to quality assurance appraisals. Failure to pay the rate for the job might result in the job not being done well or not being done at all.

Another area that should be addressed is the extension of the availability of legal aid. I confirm that the committee's reference in paragraph 25 of the report to "excepted proceedings" does not correspond to the technical definition in the existing legal aid legislation; it amounts to a much broader definition that is not confined simply to defamation and election appeals, for example. That broader definition covers the wide spectrum of fora that the public might require to access in disputes.

I will give an example from a constituency case that involved an education appeal committee. At the appeal, the parents were confronted about placing their daughter, who has cerebral palsy, at the local school—where she had been refused a place—beside her older sister. The parents faced a panel consisting of two councillors, a layperson and the legal representative of the council. They were not entitled to legal aid. However, if that appeal had failed, they would have been eligible for legal aid at the next stage, which is the appeal to the sheriff. That seems unjust and, in the end, more expensive to the public purse.

The minister should also address the problem of people not knowing where to go for what. An example that came up in evidence is advice on the welfare system. We were told that it is difficult to know where one would get a solicitor who specialised in the welfare system. I would like to meet such a solicitor, because I have never understood the welfare system.

What about the pensioner, the pavement and the purse? A pensioner who has come from her local post office and is zipping up her purse trips in the hole that has been left by two utility firms. She breaks her leg and hangs on to her purse. Shortly afterwards, she suffers a stroke. As well as entering the world of hospitals and out-patients, she is entering the world of insurers, possible litigation, legal advice and assistance and legal aid.

The pensioner goes into the office of the nearest local firm, which might or might not deal with reparation and legal aid—she is not to know that. Her claim displays some complexities, as the minister will appreciate. Which utility firm is liable? Were the subcontractors who did the work responsible? Are both utility firms liable? What is the proportion? Someone claims that protective barriers were removed. Were they? Who removed them? Did she suffer the stroke as a consequence of the fall? What about her contributory negligence? She was looking in her purse instead of looking out for the hole in the ground.